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Whitehouse E-Government Site

E-Commerce Items of Interest

THE PRUDENTIAL INSURANCE COMPANY v. PRUSKY, ED PA No. 04-CV-462, July 22, 2005. Not a government contracts case. In dismissing a complaint that Electronic Signatures in Global and National Commerce Act, 15 U.S.C. §§ 7001-7006, (“the E-Sign Act”) required Prudential to accept an electronic transaction, the Court said “The purpose of the Act is to protect transactions from legal challenges that are solely based on the electronic form of the agreement. As the statute makes clear, the use or acceptance of electronic signatures is not mandatory. Specifically, the E-Sign Act states: “This title does not...require any person to agree to use or accept electronic records or electronic signatures, other than a governmental agency with respect to a record other than a contract to which it is a party.”” §7001(b)(2).

Electronic Government-Funding of the Office of Management and Budget’s Initiatives, GAO Report 05-420, April 25, 2005
What GAO Found As shown below, most federal agencies contributed funds as originally planned by the managing partners of the 10 initiatives that relied on such contributions in fiscal years 2003 and 2004. Nevertheless, 6 of the 10 initiatives experienced shortfalls from their funding plans in fiscal year 2003 and 9 in 2004. The rationale provided by agencies for contributions that were less than planned included: (1) substitution of in-kind resources in lieu of funds, (2) lack of budget guidance from OMB reflecting planned funding amounts, (3) inability to obtain permission to reprogram funds from other accounts, and (4) organizational realignments associated with creation of the Department of Homeland Security in fiscal year 2003. For example, the e-Rulemaking initiative (managed by the Environmental Protection Agency) received only 51 percent of its planned fiscal year 2004 contributions. Although the initiative’s funding plan called for adding new funding partners in that year, OMB did not reflect this expansion when it issued its annual budget guidance to agencies. As a result, the newly added agencies generally did not contribute. According to E-Rulemaking officials, the resulting shortfall in funds, along with delays in receiving funds from other agencies, required them to significantly scale back their plans.

In most cases, fiscal year 2003 and 2004 contributions from partner agencies were made in the third and fourth quarters of the fiscal year. Agency officials identified the administrative burden associated with drafting, negotiating, and signing interagency agreements, as well as the delayed enactment of the fiscal year 2003Ð2004 appropriations bills, as contributing to this timing of contributions. However, according to officials from several agencies, although the administrative burden is still high, agencies have become more accustomed to funding strategies based on partner agency contributions

Office of E-Government and Information Technology: Notice of Draft Agency Implementation Guidance for Homeland Security Presidential Directive 1270, Request for comment, FR 18063, April 08, 2005.
Summary: The Office of Management and Budget requests comments on the draft department and agency implementation guidance on Homeland Security Presidential Directive 12(HSPD-12). The guidance is posted at http://www.whitehouse.gov/omb/inforeg/infopoltech.html.
DATES: To ensure consideration of comments, comments must be in writing and received by OMB no later than May 9, 2005.

ELECTRONIC GOVERNMENT-Smart Card Usage is Advancing Among Federal Agencies, Including the Department of Veterans Affairs, GAO Testimony, GAO 05-84T, October 6, 2004.
What GAO Found: As the unique properties and capabilities of smart cards have become more apparent, federal agencies, including the Office of Management and Budget, the National Institute of Standards and Technology, and the General Services Administration, have acted to advance the governmentwide adoption of smart card technology. In turn, numerous smart card projects that offer a variety of uses and benefits have been launched. As of June 2004, 15 federal agencies reported 34 ongoing smart card projects. Further, agencies’ actions toward the adoption of smart cards continue to evolve as understanding of the technology grows. Agencies are moving away from the small-scale, limited-duration demonstration projects of past years (involving as few as 100 cardholders and aiming mostly to show the value of using smart cards for identification) to larger, more integrated, agencywide initiatives involving many thousands (or even millions) of users and that are focused on physical access to facilities and logical (information systems) access to computer systems and networks.

Planning for the Electronic Records Archives Has Improved, GAO Report 04-927, September 23, 2004.
What GAO Found NARA has made progress towards addressing GAO’s prior recommendations: four of the eight recommendations have been fully addressed, and NARA is making progress in addressing the three recommendations on staffing, enterprise architecture, and information security (see table).

NARA is making less progress in addressing the recommendation to revise acquisition policies and plans to meet relevant industry standards. None of the eight key acquisition policies and plans fully complies with the standards selected by the agency. A contributing cause has been that although contractor staff assessed these policies and plans against standards, NARA had not established a process to ensure that the identified weaknesses were addressed and incorporated into subsequent versions. Making program policies and plans compliant before contract award is important to ensure that the agency has the information it needs to manage the acquisition and that the contractors have sufficient information on which to base the design of the system.

OMB Memorandum for Chief Financal Officers and Chief Infromation Officers, FY 2004 Grants.gov Funding and Advance Planning Guidance for FY 2005 - FY 2006, M-04-14, June 18, 2004. Through the Presidential E-Government initiative, Grants.gov, individuals, businesses, and other organizations are able to electronically find and apply for competitive grant opportunities from Federal grant-making agencies. These capabilities were built on behalf of all Federal grant-making agencies, thereby eliminating redundant investments by multiple Federal agencies which would otherwise have to build their own sites to perform this common government-wide business function.

DATA MINING Federal Efforts Cover a Wide Range of Uses, GAO Report 04-548, May 2004. Both the government and the private sector are increasingly using “data mining”—that is, the application of database technology and techniques (such as statistical analysis and modeling) to uncover hidden patterns and subtle relationships in data and to infer rules that allow for the prediction of future results. As has been widely reported, many federal data mining efforts involve the use of personal information that is mined from databases maintained by public as well as private sector organizations. [Not directly an e-commerce item, but has potential for market research and other procurement applications.-jaw]

OMB Launches Task Force to Examine Government Lines of Business, OMB 2004-07, March 22, 2004. Last week, the Office of Management and Budget kicked off a government-wide analysis of five lines of business supporting the President's Management Agenda goal to expand Electronic Government. Interagency teams will examine business and information technology data and best practices for each line of business Ð financial, human resources, grants, health, and case management systems. The goal of the effort is to identify opportunities for the FY 2006 Budget to reduce the cost of government and improve services to citizens through business performance improvements.

Electronic Records Policy Working Group Request for Public Comment-National Archives and Records Administration (NARA). 69 FR 10764, March 08, 2004. PDF version.
SUMMARY: The Electronic Records Policy Working Group is inviting interested persons to provide their written views on issues relating to implementing section 207(e)(1)(A) of the E-Government Act of 2002. That section calls for “the adoption by agencies of policies and procedures to ensure that chapters 21, 25, 27, 29, and 31 of title 44, United States Code, are applied effectively and comprehensively to Government information on the Internet and to other electronic records.” The topics on which the Working Group is seeking comment and additional information about the Working Group are provided in the SUPPLEMENTARY INFORMATION section of this notice.
DATES: To be considered, comments must be received no later than April 5, 2004.

FAR Case 2002-024, Electronic Representations and Certifications, Proposed rule, 69 FR 4011, January 27, 2004. PDF version.
SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to require offerors to submit representations and certifications electronically via the Business Partner Network (BPN), unless certain exceptions apply. The BPN is a grouping of systems that follow vendor data. Online Representations and Certifications Application (ORCA) is one application on the BPN to replace the paper based Representations and Certifications (Reps and Certs) process.
DATES: Interested parties should submit comments in writing on or before March 29, 2004, to be considered in the formulation of a final rule.

Status of Federal Public Key Infrastructure Activities at Major Federal Departments and Agencies, GAO Report 04-157, December 15, 2003. In 2001, GAO reported that the federal government faces a number of challenges in deploying PKI technology (GAO-01-277). GAO was requested to follow up this work by (1) determining the status of federal PKI activities, including initiatives planned or under way at 24 major federal departments and agencies, as well as the status and planned activities of the Federal Bridge Certification Authority (FBCA) and Access Certificates for Electronic Services (ACES) programs, and (2) identifying challenges encountered by the 24 agencies in implementing PKI initiatives since the 2001 report was issued.

E-Authentication for Federal Agencies, OMB Memorandum, December 16, 2003. The guidance updates guidance issued by OMB under the Government Paperwork Elimination Act of 1998, 44 U.S.C. § 3504 and implements section 203 of the E-Government Act, 44 U.S.C. ch. 36. This guidance also reflects activities as a result of the E-Authentication E-Government Initiative and recent standards issued by the National Institute of Standards and Technology (NIST)

Planned e-Authentication Gateway Faces Formidable Development Challenges, GAO Report 03-952, September 12, 2003. What GAO Found: Although the original goal was for the e-Authentication gateway to be operational by September 2003, GSA has achieved few of its project objectives and recently extended the milestone for completing a fully operational system to March 2004. GSA has completed several important tasks, such as issuing a request for information and fielding a demonstration prototype of the gateway. However, other essential activities, such as developing authentication profilesÑrequirements summaries that address the needs of the other 24 OMB e-government initiativesÑhave not yet been fully addressed. Further, to meet the new milestone, GSA plans to compress the acquisition process for the operational gateway by awarding a contract by December 2003 for delivery of an operational gateway by March 2004. This accelerated schedule may be difficult to achieve. The modest progress achieved to date calls into question the likelihood that the project can successfully field an operational gateway, even within the revised schedule.

ELECTRONIC GOVERNMENT Progress and Challenges in Implementing the Office of Personnel Management’s Initiatives, GAO Report 03-1169T, September 2, 2003. OPM’s five e-government initiatives are an ambitious attempt to transform the way human capital functions and services are carried out in the federal government. OPM faces several challenges that, if not fully met, could prevent it from meeting its objectives and realizing projected improvements and dollar savings.

Implementation Guidance for the E-Government Act of 2002, August 1, 2003. OMB issues guidance on the implementation of the E-Government Act of 2002 (Public Law 107-347, 44 U.S.C. Ch 36)

E-Authentication Policy for Federal Agencies; Request for Comments, Office of Electronic Government and Technology, GSA., 68 FR 41370, July 11. 2003. PDF Version.
SUMMARY: The General Services Administration, in coordination with the Office of Management and Budget (OMB) request comments on the attached draft policy on E-Authentication for Federal Agencies. GSA has coordinated this draft policy with OMB and will work closely with OMB in reviewing comments and issuing the final policy. In this draft policy, GSA is requiring that agencies implement this E-Authentication Policy, which establishes four assurance levels to create a Governmentwide standard framework for determining what is required to access a particular Government transaction online.
DATES: To ensure consideration of comments, comments must be in writing and received by GSA no later than August 11, 2003.

Order Establishing Electronic Filing Procedures An order issued by US District Court Judge Robertson establishing electronic filing procedures for the Lyons Security Service case. August 2002.

RIO PROPERTIES, INC. v. RIO INTERNATIONAL INTERLINK , 9th Cir,. No. 01-15446, March 20, 2002. Although not a contract case, the 9th Circuit affirms a decision allowing service via e-mail under FRCP 4(f)(3). To my knowledge this is the first Circuit Court opinion on this issue.

IT'S NOT THE CONTRACTED FOR RISKS, IT'S THE RISKS OF CONTRACTING, (pdf version)-"A Risk Driven View of Electronic Contracting". by Charles J. Miller, Esq. An excellent and thought provoking paper posted with permission of the author. Word Version

Joint FTC/Commerce Department Report Released on "Reasonable Demonstration" of the Consumer Consent Requirement of ESIGN. June 27, 2001. [180k pdf file]

The Information Security Committee of the American Bar Association Section of Science and Technology announces the release for public comment of its five-year project - the PKI Assessment Guidelines (the "PAG"). The PAG is available on the ABA site at http://www.abanet.org/scitech/ec/isc/pag/pag.html

S. 803, "E-Government Act of 2001" May 1, 2001. A bill to enhance the management and promotion of electronic Government services and processes by establishing a Federal Chief Information Officer within the Office of Management and Budget, and by establishing a broad framework of measures that require using Internet-based information technology to enhance citizen access to Government information and services, and for other purposes. Includes provisions for the Federal Bridge, Share-In-Savings contracts and other items.

Draft X.509 Certificate Policy For The Federal Bridge Certification Authority (FBCA). March 12, 2001 Draft which defines four certificate policies for use by the Federal Bridge Certification Authority (FBCA) and Agency CAs, representing four different assurance levels (Rudimentary, Basic, Medium, and High) for public key digital certificates. This Certificate Policy (CP) is consistent with the Internet Engineering Task Force (IETF) Public Key Infrastructure X.509 (IETF PKIX) Part 4 Certificate Policy and Certification Practice Statement Specification. [340K pdf file]

NOTICE REGARDING ELECTRONIC FILINGS IN BID PROTESTS The General Accounting Office invites comments on the use of e-filing to file protected documents in bid protest matters. Comments are requested by March 28, 2001.

Advances and Remaining Challenges to Adoption of Public Key Infrastructure Technology, GAO Report 01-277, February, 2001. GAO's assessment of the government's PKI strategy and initiatives. [741K pdf file]

Electronic Authentication Policy-Financial Management Service, Fiscal Service, Treasury. 66FR 394, January 3, 2001.
SUMMARY: The Office of Management and Budget (OMB), as part of its procedures to implement the Government Paperwork Elimination Act (GPEA), directed the Department of the Treasury (Treasury) to develop, in consultation with Federal agencies and OMB, policies and practices for the use of electronic transactions and authentication techniques in Federal financial transactions, including payments and collections. In accord with this directive, Treasury is publishing this Electronic Authentication Policy. PDF Version

Legal Considerations in Designing and Implementing Electronic Processes: A Guide for Federal Agencies Department of Justice, November 2000.
From DOJ's web page: "This guide addresses legal issues that agencies are likely to face in converting to electronic processes and provides suggestions on how to address these issues. The rise of electronic commerce offers departments and agencies exciting opportunities to convert or redesign existing processes. At the same time, creating a more accessible and efficient government requires us to maintain public confidence in the security and reliability of the Government's electronic transactions, processes, and systems. Thus, in designing electronic systems, departments and agencies should ensure that essential data are available when need and that the data and the underlying processes are legally sufficient, reliable and in compliance with all applicable legal requirements."

OMB Provides E-SIGN Guidance OMB issues guidance to agencies on the implementation of E-Sign which became effective, for the most part, on October 1, 2000.

Electronic Signatures in Global and National Commerce Act, H. Rept 106-661. Conference report passed June 14, 2000 by House on 426-4 vote. Senate expected to pass on 6/16/2000 and President expected to sign. [PDF File 136K, may wish to download to disk.]

OMB-Implementation of the Government Paperwork Elimination Act, Procedures and Guidance;, OMB, 65 FR 25508, May 02, 2000. The Office of Management and Budget (OMB) provides procedures and guidance to implement the Government Paperwork Elimination Act (GPEA). GPEA requires Federal agencies, by October 21, 2003, to allow individuals or entities that deal with the agencies the option to submit information or transact with the agency electronically, when practicable, and to maintain records electronically, when practicable. The Act specifically states that electronic records and their related electronic signatures are not to be denied legal effect, validity, or enforceability merely because they are in electronic form, and encourages Federal government use of a range of electronic signature alternatives. [pdf version]

Announcing Approval of Federal Information Processing Standard (FIPS) 186-2, Digital Signature Standard (DSS). 65 FR 7507, February 15, 2000. Commerce adds an additional voluntary industry standard for the federal agencies to use in generating and verifying digital signatures. These new standards are ANSI X9.31, Digital Signature Using Reversible Public Key Cryptography, and ANSI X9.62, Elliptic Curve Digital Signature Algorithm (ECDSA).

1999 Report- Electronic Purchasing and Payment in the Federal Government This report discusses the activities the Federal government is undertaking to strengthen and integrate buying and paying processes through the use of electronic commerce (EC). This report is required by section 30 of the Office of Federal Procurement Policy Act.

THE EMERGING DIGITAL ECONOMY II A second report on Electronic Commerce. June 1999, 58 pages.
The Emerging Digital Economy-I, PDF version, 608K. The first report, April, 1998. Quite comprehensive. 260 pages including appendices.

Technical Management of Internet Names and Addresses The Administration posts a proposal for comment. A Federal Register notice will follow shortly

Government Paperwork Elimination Act, Pub.L. 105-277, 112 Stat. 2681-749, October 1998.